Long Service Leave Act 2018

Long Service Leave Act2018

No. 12 of 2018

table of provisions

SectionPage

Part 1—Preliminary

1Purposes

2Commencement

3Definitions

4Act binds the Crown

5Employees to whom this Act does not apply

Part 2—Long service leave entitlements

6Entitlement to long service leave

7Long service leave does not include public holidays or annual leave

8Leave in advance

9What happens if employment ends before leave is taken?

10What is to happen if the employee dies before leave is taken?

11Meaning of one employer

12Meaning of continuous employment

13Periods of absence from work that are taken to be periods of employment when calculating the length of a period of continuous employment

14Periods of absence from work not taken to be periods of employment when calculating the length of a period of continuous employment

15Meaning of ordinary pay and ordinary time rate of pay

16Normal weekly hours if none fixed or hours changed

17Normal weekly hours and ordinary time rate of pay if working in suitable employment or absent due to workplace illness or injury

18Employee may make request for long service leave

19Employer may direct employee to take long service leave

20Payment while on long service leave

21Pay increases while on leave

22Leave at half pay

23Contracting out prohibited

Part 3—Enforcement

Division 1—Industrial Division of the Magistrates' Court

24Jurisdiction of the Industrial Division of the Magistrates' Court

25Proceedings for offences to be brought in Industrial Division of the Magistrates' Court

26Recovery of money owed

27Order for reimbursement, reinstatement and compensation

28Order for payment of arrears or compensation on conviction

Division 2—Authorised officers

29Appointment of authorised officers

30Identity cards

31Power to require information or documents

32Retention of documents

33Confidentiality

Division 3—Offences

34Payments in lieu forbidden

35Offences concerning working during long service leave

36Adverse action taken against employee

37Offences concerning long service leave records

38Failing to produce documents or giving false or misleading documents

39Protection against self-incrimination

40Who can prosecute under this Act?

41Judicial notice of signatures

42Imputing conduct to bodies corporate or other employer

43Criminal liability of officers of bodies corporate—accessorial liability

44Offences by unincorporated associations

Part 4—Preservation of superior longserviceleave entitlements

45Application of Part

46Definition of award

47Preservation

Part 5—Preservation of accrued longserviceleave entitlements

48Definitions for this Part

49Protection of accrued entitlements

Part 6—Disclosure requirements for workplace agreements

50Disclosure of modified or removed long service leave entitlements

Part 7—General

51Long service leave records

52Supreme Court—limitation of jurisdiction

53Regulations

54Transitional regulations

Part 8—Repeal of Long Service LeaveAct1992 and savings and transitionalprovisions

55Definitions

56Long Service Leave Act1992 repealed

57Transitional provisions

Part 9—Consequential amendments of otherActs and repeal of this Part

58Education and Training Reform Act 2006

59Delivering Victorian Infrastructure (Port of Melbourne Lease Transaction) Act 2016

60Outworkers (Improved Protection) Act 2003

61Pre-school Teachers and Assistants (Leave) Act1984

62Repeal of this Part

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Endnotes

1General information

SectionPage

Victoria

SectionPage

Long Service Leave Act2018[†]

No. 12 of 2018

[Assented to 15 May 2018]

Long Service Leave Act2018
No. 12 of 2018

The Parliament of Victoriaenacts:

Part 9—Consequential amendments of otherActs and repeal of this Part

Long Service Leave Act2018
No. 12 of 2018

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to make provision with respect to the longservice leave entitlements of certain employees, including public and private sector employees and police officers; and

(b)to repeal the Long Service Leave Act1992; and

(c)to make consequential amendments to other Acts.

2Commencement

(1)Subject to subsection (2), this Act comes into operation on a day to be proclaimed.

(2)If this Act does not come into operation before 1November 2018, it comes into operation on that day.

3Definitions

(1)In this Act—

authorised officer means a person appointed under section 29;

continuous employment has the meaning given in section 12;

employee includes—

(a)a person employed by an employer to do any work for hire or reward and includes—

(i) an apprentice and any person whose contract of employment requires the person to learn or to be taught an occupation; and

(ii) a casual or seasonal employee;and

(b)a public sector employee within the meaning of section 4(1) of the Public Administration Act 2004; and

(c)a person employed under Part 6 of the Public Administration Act 2004; and

(d) a director of a public entity within the meaning of the Public Administration Act 2004; and

(e) a person appointed under Part3 of the Victoria Police Act 2013; and

(f) a person appointed as a police reservistunder section 103 of the Police Regulation Act 1958 as in force immediately before the commencement of section282 of the Victoria Police Act 2013;

employerincludes—

(a)a person by whom an employee is employed; and

(b) in the case of a transfer of assets referred to in section 11, a person who was not an employer at the time of the transfer but who is taken to be an employee's one employer under that section; and

(c)in the case of a contract for the performance of work referred to in section 11, a person who was not an employer at the time the contract was entered into but who is taken to be an employee's one employer under that section; and

(d) a person or body (corporate or unincorporate) nominated by the Governor in Council as the employer ofa person referred to in paragraph (b), (c), (d), (e) or (f)of the definition of employee;

employment agreement means the agreement (whether written or oral) under which an employee is employed and includes—

(a)a fair work instrument; and

(b)a fair work instrument given continuingeffect under the Fair WorkTransition Act;

Fair Work Act means the Fair Work Act 2009 of the Commonwealth;

fair work instrument has the same meaning as in section 12 of the Fair Work Act;

Fair Work Transition Act means the Fair Work(Transitional Provisions and Consequential Amendments) Act 2009
of the Commonwealth;

long service leave record includes any register, certificate, notice, pay sheetor other document relating to an employee's long service leave entitlement;

one employer has the meaning given in section11;

ordinary payhas the meaning given in section15(1);

ordinary time rate of pay has the meaning givenin section 15(2);

organisation meansan association of employees that is registered under the law of any State or Territory or of the Commonwealth;

other Act includes an Act of the Commonwealth and of any State or Territory;

parental leave means—

(a)maternity leave; and

(b) paternity leave; and

(c)adoption leave;

person includes an unincorporated body and a partnership;

reasonable business grounds includes the following—

(a)there is no capacity to change the working arrangements of other employees to accommodate the employee taking long service leave atthe requested time;

(b)it is impractical to change the working arrangements of other employees, or recruit new employees to accommodate the employee taking long service leave at the requested time;

(c)the long service leave requested by theemployee is likely to result in a significant loss in efficiency or productivity;

(d)the long service leave requested by the employee is likely to have a significant negative impact on customer service;

Secretary means the Department Head (within the meaning of the Public Administration Act2004) to the Department of Economic Development, Jobs, Transport and Resources.

(2) For the purposes of the definition of casual or seasonal employee in subsection (1), a casual or seasonal employee may be employed—

(a)on a part-time or full-time basis; and

(b)by the employer under 2 or more employment agreements; and

(c)by other employers during the period referred to in that definition.

4Act binds the Crown

This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

5Employees to whom this Act does not apply

This Act does not apply in relation to an employee who—

(a)is entitled to long service leave under a Victorian Actother than this Act, to the extent of any inconsistency with that other Victorian Act; or

(b)is entitled to long service leave under an employment agreement (regardless of whether it was made before or after the commencement of this Act),to the extent ofany inconsistency with that employment agreement if, in the opinion of the Industrial Division of the Magistrates' Court, the long service leave entitlements are more favourable under that agreement than those provided by this Act; or

(c)is employed by an employer who was exempted from complying with Division 6 of Part 5 of the Long Service Leave Act1992under section 65 of that Act; or

(d) is employed under Part 2.3 or 2.4 of theEducation and Training Reform Act2006; or

(e) is entitled under the Construction Industry Long Service Leave Act 1997 to long service leave and tobe paid benefits out of the fund within themeaning of that Act.

Part 2—Long service leave entitlements

6Entitlement to long service leave

At any time after completing 7 years of continuous employment with one employer, an employee is entitled to an amount of long service leave on ordinary pay equal to 1/60th of the employee'stotal period of continuous employmentless any period of long service leave taken during that period.

7Long service leave does not include public holidays or annual leave

Long service leave does not include any public holiday occurring,or annual leave taken, during the period when the long service leave is taken.

8Leave in advance

(1)An employer may agree to an employee taking long service leave—

(a)despite the employeenot completing
7 years of continuous employment with theemployer; and

(b)at any time before the employee becomes entitled to thelong service leave.

(2)If an employeetakes long service leave before theemployee is entitled to the long service leave, the employee is not entitled to any further long service leave or payment in lieu of long service leave for the period of employment in respect of which the leave in advance was taken.

(3)If an employeetakes long service leave before theemployee is entitled to the long service leaveand the employee's employment ends, the employer may deduct from any payment payable
to the employee as a result of the ending of the employment an amount equal to the amount paid to the employee for the leave (if any) in respect of which the employee will not become entitled.

9What happens if employment ends before leave is taken?

(1)If an employee's employment ends (other than because of the employee's death) before the employee has taken all the long service leave to which the employee is entitled, the employee is taken to have started long service leave on the day that the employment ended.

(2)On the day referred to in subsection (1), the employee's employer must pay the employee the full amount of the employee's long service leave entitlement as at that day.

Penalty:In the case of a natural person,
12penalty units for each day during which the offence continues;

In the case of a body corporate,
60penalty units for each day during which the offence continues.

Note

Section 43 applies to an offence against this subsection.

10What is to happen if the employee dies before leave is taken?

(1)If an employee dies before taking all the long service leave to which the employee is entitled, the employee's employer must pay to the employee's personal representative the full amount
of the long service leave entitlement still owed to the employee.

Penalty:In the case of a natural person,
12penalty units for each day during which the offence continues;

In the case of a body corporate,
60penalty units for each day during which the offence continues.

Note

Section 43 applies to an offence against this subsection.

(2) If, in relation to a prosecution of an offence against this section, the employer alleges that the length of the employee's period of continuous employment with the employer is wrong in the chargesheet, the employer bears the onus of proving the allegation.

(3)For the purposes of calculating the amount to be paid under this section—

(a)the ordinary pay of the employee is the amount the employee was entitled to receive as at the time of the employee's death for working the employee's normal weekly hours at the employee's ordinary rate of pay; and

(b)any average that needs to be taken for the purposes of section 15 or 16 is to be taken over the 52 weeks immediately before the employee's death.

11Meaning of one employer

(1)This section sets out several situations in which anemployee is taken, for the purposes of this Act, to have been employed by one employer despite having been employed during the relevant period by more than one employer in a strict legal sense.

(2)If an employee is employed by a corporation, the employee is taken to have been employed by the corporation during any period that the employee was employed by—

(a)a related body corporate of the corporation (within the meaning of the Corporations Act); or

(b)another corporation and—

(i)the directors of that other corporation and the employee's present employer were substantially the same; or

(ii)that other corporation and the employee's present employer wereunder substantially the samemanagement.

(3)If the ownership of a business employing an employee changes but the employment of the employee continues—

(a)the employee is taken to have started employment with the new owner on the date on which the employee started employment at that business; and

(b)the new owner must not refuse to provide the employee any long service leave to which the employee is entitled, including long service leave which accrued before the change of ownership.

(4)Subsection (3) applies regardless of whether the change of ownership of the business occurred before or after the commencement of this Act.

(5)If an employee is dismissed from employment by the owner of a business and is reemployedwithin 12 weeks after the day of the dismissal by a new owner of the same business to perform work for the new owner which is the same (or substantially the same) as the work the employee performed for the former owner, the employee is taken—

(a)to have finished employment with the former owner on the day before the ownership of the business changed; and

(b)to have started employment with the new owner on the day the ownership of the business changed; and

(c)to have been employed by the new owner from the day on which the employee first started employment at that business.

(6)If an employee performs duties in connection with any assets used in the carrying on of a business owned bythe employee's employer and those assets are transferred to another employer who continues the employment of the employee—

(a)the employee is taken to have started employment with the new owner on the day on which the employee started employment at that business; and

(b)the new owner must not refuse to provide theemployee any long service leave to which the employee is entitled, including long service leave which accrued before the transfer.

(7)Subsection (8) applies if—

(a)an employee performs duties in connection with any assets used in the carrying on of an employer's business; and

(b) the employee is dismissed by that employer; and

(d)within 12 weeks after the day of the dismissal, the other employer employs the employee to perform duties in relation to those assets or other assets of a similar kind.

(8)An employee referred to in subsection (7) is taken—

(a)to have finished employment with the employee's former employer on the day before the assets were transferred; and

(b)to have started employment with the new employer on the day the assets were transferred; and

(c)to have been employed by the new employer from the day on which the employee first started employment at that business.

(9) Subsection (10) applies if—

(a)an employee performs work in the course ofemployment with the employee's employer (the first-mentioned employer);and

(b) the first-mentioned employer enters intoacontract with another person (thesecond-mentioned employer) for theperformance of work that isthe same (orsubstantially the same) as the work performed for the first-mentioned employer; and

(c) as a consequence of that contract, the employee ceases employment with the firstmentioned employer and commences employment with the second-mentioned employer.

(10)An employee referred to in subsection (9) is takento have started employment with thesecond-mentioned employer on the day on whichthe employee started employment with the firstmentioned employer.

(11)The second-mentioned employer referred to in subsection (9) must not refuse to provide the employee any long service leave to which the employee is entitled, including long service leave which accrued while the employee was employed by the first-mentioned employer.

(12) In this section—

assetsincludes tangible and intangible assets;

businessincludes a trade, process and occupation and any part of a trade, process or occupation and also includes any part of a business;

transferincludes a transmission, conveyance, assignment or succession, whether by agreement or by operation of law.

12Meaning of continuous employment

(1)This section sets out several situations in which an employee is taken, for the purposes of this Act, to be continuously employed even though in a strict legal sense it could be said that the employee's employment was interrupted.

(2)An employee's employment is taken to be continuous despitean absence from work caused by the employee taking—

(a) annual leave; or

(b) long service leave; or

(d) in the case of a casual or seasonal employee, paid or unpaid parental leave that is not longer than 104 weeks; or

(e) carer's leave; or

(f) leave on account of illness or injury; or

(g)any other form of leave not referred to in this subsection that is provided for under the relevant employment agreement.

(3) A casual or seasonal employee's employment is taken to be continuous despite an absence from work that is longer than12 weeks,starting at the end of a particular instance of employment and ending at the start of another particular instance of employment if—

(a) the casual or seasonal employee and the employer so agree before the start of the absence; or

(b) the absence is due to the terms of engagement of the casual or seasonal employee; or

(d) the employee has been employed by the employer on a regular and systematic basisand the employee has a reasonable expectation of being re-engaged by the employer.

(4) An employee's employment is taken to be continuous despite an absence from work caused by the employer terminating or interrupting the employment with the intention of avoiding an obligation in relation to long service leave.

(5)An employee's employment is taken to be continuous despite an absence arising solely fromthe transfer of assets from one employer to another, if the employee usually performs duties which are connected with those assets.